Footnotes

1. The literature on brain death - medical, legal,
halachic-is huge and only selective citations can be given here.
The best nonhalachic survey of the legal and medical issues
can be found in a report of the President's Commission for the
Study of Ethical Problems in Medicine and Biomedical and Behaviorial
Research, Defining Death (1981). Halachic treatment (as well
as good discussion of related legal and medical approaches) can be
found in a just-published book of Rabbi J. David Bleich, TIME OF
DEATH IN JEWISH LAW (Z. Berman, 1991) which is a compendium of
Bleich's previously-published Hebrew and English articles expounding
his well-known opposition to "brain death" criteria. An excellent
symposium (which also presents R. Tendler's opposing view) appears
in Volume 17 of the JOURNAL OF HALACHA AND CONTEMPORARY SOCIETY
(Spring 1989). Finally, the October 1991 JEWISH OBSERVER
contains an interesting exchange of correspondence between
Rabbi Tendler and Chaim Zweibel, General Counsel of Agudath
Israel of America.

2. A Definition of Irreversible Coma - Report of
the Ad Hoc Committee of the Harvard Medical School to Examine the
Definition of Brain Death, 205 JAMA 337-350 (1968).

3. President's Commission for the Study of
Ethical Problems in Medicine and Biomedical and Behavioral Research,
Defining Death: Medical, Legal, and Ethical Issues in the Determination
of Death (Government Printing Office, 1981).

5. Brain stem death occurs, when due to trauma,
the brain swells and the pressure in the skull rises to exceed
blood pressure. The brain is deprived of blood and oxygen and
the brain tissue begins to liquify [lyse]. While total dysfunction
occurs minutes after deprivation of oxygen, total liquification
does not take place until some time after cardiac death, indeed
sometimes several days after internment.

6. A good description of the scientific
aspects of brain death can be found in 24 TRADITION 1, 8-14
(Summer 1989) (Dr. Jakobovitz's annotations to the Chief
Rabbinate's ruling) and in Kielson, Determining the Time of
Death-Medical Aspects, 17 JOURNAL OF HALACHA AND CONTEMPORARY
SOCIETY 7-13 (Spring 1989).

7. See sources cited in Bleich, Of Cerebral,
Respiratory, and Cardiac Death, 24 TRADITION 44, 61 n.5 (Spring
1989), reprinted in TIME OF DEATH IN JEWISH LAW, pp. 129-160.

8. Much of this information was derived from
the articles cited in note 5 and a communication of Rabbi Moshe
Tendler to the members of RCA dated Summer 1991.

9. Apnea testing takes many forms. One standard
test may involve providing the patient with 100% oxygen for 20-30
minutes through the respirator and then shutting off the machine,
thereby allowing the carbon dioxide in the blood to rise but at
the same time allowing for passive gaseous diffusion of oxygen
through the tubes of the machine or through a tube inserted directly
into the trachea. This allows the CO2 in the blood
to rise, enabling a test of the respiratory response without
depriving the patient of necessary oxygen in the interim. While
a normally-functioning brain stem would induce respiration at a
fairly-low pressure of CO2, a diagnosis of death will
not be confirmed until the CO2 pressure is considerably
above the normal triggering point but nevertheless fails to elicit
a respiratory response.

10. Note that a flat EEG (electroencephalogram)
is not a necessary condition for a brain death diagnosis. A flat
EEG does not in any event insure brain stem death but at best,
indicates only absence of (perceptible) upper brain activity.
Conversely, even in patients with a brain death diagnosis, sporadic,
minimal EEG activity has occasionally been found. The Harvard
criteria regard a flat EEG as helpful and confirmatory but not
essential to a brain death diagnosis.

11. Compare letter of Rabbi Tendler printed
in the October 1991 JEWISH OBSERVER with the degree of skepticism
expressed by Dr. Keilson, supra note 5, at 12. Indeed, some
earlier studies had indicated that angiography only measures
deficit, not cessation of blood flow even to the cerebrum
and that up to 24% of normal blood flow could still be present.
Modern refinements in these techniques probably allow for a
definitive determination of zero blood flow to the cerebrum but
"persistent perfusion and survival of the brain stem" remain a
distinct possibility. See studies cited in Bleich, supra
note 6, at notes 13-21. I have no information as to the accuracy
of any of those studies; I simply point them out for the edification
of the reader.

12. See the sources in the medical literature
cited by Bleich, supra note 6, at 62 n.5 [at 133, n.5 in the book].

19. It should be noted, however, that the teshuva
concerning nuclide scanning was addressed to R. Tendler for his own
guidance, surely entitling his understanding of the responsa to great weight.

20. The current status of the RCA proxy is unclear.
In light of the negative psak of Rabbis Auerbach and Elyashiv,
Rabbi Marc Angel, the President of the RCA., circulated a cover
letter to the membership cautioning that the proxy form should
not be used until the individual rav has thoroughly studied
the issue and consulted experts in the field. Rabbi Tendler has
similarly stated that at least portions of the proxy form were
merely a "first draft" to be circulated to rabbanim. Yet the RCA
continues to make the form available to the general public without
informing them of these disclaimers. It is respectfully submitted
that this inadvertent oversight be corrected.

21. Dr. Steinberg's paper, originally prepared to
assist the Chief Rabbinate in their deliberations, appears in OR
HAMIZRACH (Tishrai 5748).

30. Of course, even in New York, only "reasonable
accommodation" is required and one can well imagine triage considerations
forcing patients off respirators prematurely.

31. Moreover, even where doctors defer to the family's
wishes, insurance companies may refuse to pay the costs of sustaining
what is legally-regarded as a cadaver. This is likely not to be a
problem in New York since the regulatory duty of "reasonable
accommodation" prevents a determination of brain death.